Brownfield Restoration Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 02 December 2022
• Neutral Citation: [2022] IEHC 662
• Court: High Court
• Docket Number: [2008 No. 56 SP]

Between

Brownfield Restoration Ireland Limited

Plaintiff

and

Wicklow County Council

Defendant

and

The Environmental Protection Agency and The Minister for Housing, Local Government and Heritage

Notice Parties

[2022] IEHC 662

[2008 No. 56 SP]

THE HIGH COURT

(No. 7)

JUDGMENT of Humphreys J. delivered on the 2 ^nd day of December 2022 .

1 . This is the fourteenth decision in a matrix of proceedings relating to illegal dumping which began 43 years ago in 1979 on a site in Whitestown, County Wicklow. The previous decisions were as follows:

• (i). In Wicklow County Council v. O'Reilly (No. 1) [2006] IEHC 265, (Unreported, High Court, Clarke J., 8 ^th February, 2006), the court made orders as to the appropriate defendants in waste enforcement proceedings brought by the council.

• (ii). In Wicklow County Council v. O'Reilly (No. 2) [2006] IEHC 273, [2006] 3 I.R. 623, the court declined to stay the proceedings pending prosecutions arising from the illegal dumping.

• (iii). In Wicklow County Council v. O'Reilly (No. 3) [2007] IEHC 71, (Unreported, High Court, Clarke J., 2 ^nd March, 2007), the court directed the trial of a preliminary issue regarding the liability of a director.

• (iv). In Wicklow County Council v. O'Reilly (No. 4) [2010] IEHC 464, (Unreported, High Court, O'Keeffe J., 7 ^th December, 2010), the court refused a mistrial application although it decided that the council had not made proper discovery.

• (v). In Wicklow County Council v. O'Reilly (No. 5) ( Ex tempore, Not circulated, O'Keeffe J., 20 ^th December, 2011), after 23 days of hearing, the court decided to adjourn the remediation proceedings on the council's application, pending proposed remediation actions by the council. The proceedings so derailed never effectively restarted but were replaced by the present proceedings, which were waste enforcement proceedings brought by the landowner against the council, partly on the basis that the remediation actions carried out were inadequate or inappropriate.

• (vi). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 1) [2017] IEHC 310, ( [2017] 4 JIC 2604 Unreported, High Court, 26th April, 2017) (noted Joseph Richardson BL (2017) 24(2) I.P.E.L.J. 56), I granted the council's application for the modular trial of the proceedings.

• (vii). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 2) [2017] IEHC 397, ( [2017] 6 JIC 1201 Unreported, High Court, 12th May, 2017), I decided a number of preliminary issues including the rejection of certain allegations of misconduct against the council.

• (viii). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 3) [2017] IEHC 456, ( [2017] 7 JIC 0706 Unreported, High Court, 7th July, 2017) (noted Estelle Feldman (2017) A. Rev. Ir. Law 95), I decided in principle to order remediation.

• (ix). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 4) [2017] IEHC 486, ( [2017] 7 JIC 1907 Unreported, High Court, 19th July, 2017), I made the formal order directing remediation and set out indicative timelines for fifteen steps with a definite final date for completion of full remediation and handover to the landowner. That long-stop date was in effect 19 ^th January, 2024.

• (x). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 5) [2017] IEHC 487, ( [2017] 7 JIC 1908 Unreported, High Court, 19th July, 2017), I decided on the question of costs.

• (xi). In Wicklow County Council v. O'Reilly [2019] IECA 257 (Unreported, Court of Appeal, Costello J., 16 ^th October, 2019), the Court of Appeal dismissed an appeal regarding the timeline allowed for remediation. It partly allowed an appeal regarding costs.

• (xii). In Brownfield Restoration Ireland Ltd v. Wicklow County Council [2021] IESCDET 71, (Supreme Court Determination, Not yet circulated, 21 ^st June, 2021, O'Donnell, McMenamin and Woulfe JJ.), the Supreme Court refused leave to appeal in relation to the timeline issue.

• (xiii). In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 6) [2021] IEHC 599, ( [2021] 9 JIC 3007 Unreported, High Court, 30th September, 2021), I directed that (without prejudice to the long-stop date) the council was to complete the biodiversity surveys required for the preparation of a Natura Impact Statement by 17 ^th December, 2021; and that the matter be listed for mention to deal with the subsequent steps.

2 . The matter was listed again on 1 ^st November, 2021, at which point Brownfield was primarily concerned with whether the council could clarify whether it was going to comply with the existing deadline. The council responded that there was “no reality” to the long-stop date being complied with.

3 . I added the Minister for Housing, Local Government and Heritage as a notice party essentially in lieu of the National Parks and Wildlife Service, having regard to the transfer of functions under the Heritage (Transfer of Departmental Administration and Ministerial Functions) Order 2021 (S.I. No. 302 of 2021). The Environmental Protection Agency had already been joined as a notice party by order of 23 ^rd May, 2017.

4 . Subsequent to that, both the EPA and the State were given an opportunity to review the draft remediation plan and were then excused from further participation in the proceedings, with liberty to apply.

The plenary proceedings

5 . There are also two sets of plenary proceedings, separate from the two sets of waste enforcement actions referred to above:

• (i). Brownfield Restoration Ireland Ltd v. Wicklow County Council [2007] No. 1541P, referred to at para. 40 of the No. 3 judgment. That was struck out against certain defendants and then discontinued against the other defendants.

• (ii). A further set of proceedings was issued after the order for remediation: Brownfield Restoration Ireland Ltd v. Wicklow County Council [2020] No. 5730P. That sought damages and other remedies related to breach of constitutional rights and deprivation of property, as well as making a constitutional challenge to s. 58 of the Waste Management Act 1996.

Materials before the court

6 . For the record, materials placed before the court by being uploaded to the ShareFile folder for this case included books of affidavits, judgments, correspondence, a list of issues, and papers on the Whitestown Remediation Project (Drawings, Plans, Reports), running to a combined total of 6,572 pages (something of a local record at the moment).

Issues at this point

7 . A wide variety of issues were raised at a hearing on 14 ^th November, 2022. Such is the level of controversy and complication in the proceedings that the sole agenda for that hearing (and thus the purpose of the present judgment) was to fix an agenda for the next hearing. Five specific headings were raised:

• (i). The 2020 proceedings.

• (ii). The need for further affidavits and documents.

• (iii). A preliminary objection arising from the principle as to whether the court could be asked to approve a plan that involved a timeline going beyond the long-stop date.

• (iv). Provision for the landowner's costs.

• (v). The agenda for approval of the remediation plan.

8 . At the conclusion of that hearing, I announced the order being...